ASYLUM DECISIONS ON CHILD APPLICANTS Report on 4-Country Pilot Project
Kate Halvorsen
June 2004
CONTENTS
1. Introduction 3
1.1 Bacground 3
1.2 Legal Framework 4
1.3 Methodology 7
2. Statistics and Asylum System in 4 Countries 9
2.1 Statistics 9
2.2 Asylum Law 11
2.3 Asylum Procedure 13
2.4 Special Provisions for Separated Children 15
3. Findings 16
3.1 Interviews: Questions and Line of Questioning 16 3.2 Credibility and Evidentiary Issues 20 3.3 Child-Specific Forms of Persecution 23 3.4 Imputed Political Opinion 31 3.5 Political Opinion and Activity 33 3.6 Torture, Cruel, Degrading and Inhuman Treatment of Children 34 3.7 Internal Flight Alternative 37 3.8 The Issue of Caregivers and Family Unity 37 3.9 Reference to International Standards on Children 39
4 Summary 40
4.1 Contrasts and Similarities between Countries 40 4.2 Unexpected Problems and Issues 43 4.3 Recommendations for Further Study 43
1. Introduction
1.1 Background
Among the thousands of refugees who seek asylum in Europe each year a significant number are children who are on their own. The past few years has seen an increase in attention given to the rights and needs of these ‘separated children’. Some positive developments have taken place in terms of reception and care and some procedural aspects.1 However, an area which has been largely neglected is the refugee status determination itself of child applicants. Very few studies have been made2 and few countries produce official statistics and
information regularly on this group of asylum-seekers. The little knowledge available indicates, however, that very, very few children are recognized as refugees in any European country and that there are few examples where child- specific persecution is taken into consideration3.
Consequently, a proposal has been made to carry out international research on the outcome of asylum applications by separated children needing refugee
protection.4 The project “Seeking Asylum Alone” will compare 10-12 countries in Europe, North-America and Australasia and will examine data material over the past three-four years. The main objective is to examine how effective these states are through their legal and administrative structures in protecting children in need of refugee protection. On the one hand, it will seek to document and describe current practice by answering some critical questions related to how children are treated during interviews and assessments of their claims. Are interviewers and interpreters specially trained to handle interviews with children, and how is this reflected? Is there special consideration of the fact that children are being
assessed, and not adults? What are the results in terms of the actual decisions that are made on separated children? On the other hand, the objective is to find
1 Refer to eg. ”Separated Children in Europe Program”, a collaboration between UNHCR and Save the Children, website: www.separated-children-europe-programme.org
2See for example, Jacqueline Bhabha: “Inconsistent State Intervention and Separated Child Asylum- Seekers”, European Journal of Migration and Law 3, 283 – 314 2001 “Lone Travelers: Rights,
Criminalization and the Transnational Migration of Unaccompanied Children”, 7 Roundtable University of Chicago Law School, 269-294 2000, “Not an Adult in Miniature: Children as Refugees” 11(1)
International Journal of Refugee Law, 84 - 125, with Wendy Young 1999; Karin Juhlen: Barns Egna Asylskal, Save the Children Sweden 2003 but this report focuses almost entirely on children in families; a few useful and interesting conclusions about separated children decisions in Cecilia Bailliet: ”Study of the Grey Zone between Asylum and Humanitarian Protection in Norwegian Law and Practice” University of Oslo 2003; Geir Ludvigsen’s ongoing doctoral thesis, working title “International legal protection of children in flight. An investigation of children’s right to refugee protection according to the Refugee Convention”, University of Tromsø, Norway
3 Sandy Ruxton, Separated Children Seeking Asylum in Europe: A Programme for Action, UNHCR/Save the Children, Stockholm 2000
4 Project proposal: ”Seeking Asylum Alone – The Treatment of Separated Children in Need of Refugee Protection” by Professor Jacqueline Bhabha, Harvard University 2002
examples of good practice, innovative and in line with international standards on children, which could be used in the promotion of policy improvement on child protection.
As part of this research a pilot project was designed to make a preliminary study comparing Austria, Germany, Norway and Sweden. The main aim of the pilot project is to make a first collection of comparable raw data and produce some preliminary findings in order to get a sense of issues, problems or trends in
relation to both substance and method. These four countries were chosen because they all have had significant numbers of separated children seeking asylum during the period in question and they all have similar, sophisticated asylum-systems.
They have applicants from a wide range of countries and a similar profile of separated children. The pilot project is funded jointly by UNHCR and the Norwegian Ministry of Local Government and Regional Development
This is a report on the findings of the pilot project and is divided into four main parts. The first part is on the background, the legal framework and
methodological considerations. The second part includes the available statistics and some country-specific information on the asylum systems and legislation.
The third part goes through the main findings according to theme and issue. The last part summarizes similarities and differences between the countries and ends with recommendations for a follow-up study.
1.2 Legal Framework
The protection of separated refugee children is primarily enshrined in two international conventions: the 1951 UN Convention and 1967 Protocol Relating to the Status of Refugees (hereinafter ‘Refugee Convention’) and the 1989 UN Convention on the Rights of the Child (hereinafter ‘CRC’). Other international standards on children can be found in a number of international human rights instruments5 and guidelines, in particular the UNHCR “Guidelines on Protection and Care” from 1994 and the UNHCR “Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum” from 1997 (hereinafter
‘UNHCR 1997 Guidelines’). UNHCR is currently working on a new set of guidelines to address, among other things, the special case of refugee status determination of children.6
5 1966 International Covenant on Civil and Political Rights, 1966 International Covenant on Economic, Social dn Cultural Rights, 1982 Convention on the Elimination of All Forms of Discrimination of Women, 1990 African Charter on the Rights and Welfare of the Child, 1998 Satute of the International Criminal Court, 1999 ILO Conveniton No. 192 on the Worst Forms of Child Labour, 2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, the 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the 2000 UN Convention Against Transnational Organized Crime.
6 Draft: “Age-Sensitive Interpretation of the Refugee Definition as Contained in Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees” - Still not finished.
The Refugee Convention does not distinguish between categories of people, neither related to age nor to any other characteristic. “For the purposes of the present Convention, the term “refugee” shall apply to any person who:…..”7 “The same definition of a refugee applies to all individuals, regardless of their age.”8 Article 22 of the CRC states that “States Parties shall take appropriate measure to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”
In addition, there are regional instruments, such as the European Convention on Human Rights (ECHR) and EU legislation. The EU is in the process of adopting a number of directives in the field of asylum and immigration, which are binding for EU states, ie. Austria, Germany and Sweden. Although Norway is not an EU member the new legislation provides significant guidance in the development of Norwegian asylum policy. These include the directives on Temporary Protection, Reception Standards and the proposal on Asylum Procedures.9 However, the most relevant in this context is the Qualification Directive10, which still has not been adopted. However, the important parts relevant to children are not expected to be changed. Article 7 on “Asessment of facts and circumstances” states in 3 that
“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: …..(c) that the
individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicants’ personal circumstances, the acts to which he or she has been or could be exposed would amount to persecution or serious harm.” Article 11 on “Acts of persecution” in Article 2 states that “Acts of persecution, which can be qualified as such in accordance with paragraph 1, can inter alia take the form of: …..(f) acts of a gender-specific or child-specific nature.”
7 Refugee Convention, Art. 1 A
8 Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR , Geneva 1992
9 Council Directive on Minimum statndards for giving temporary protection in the event of mass influx of displaced persons and on promoting a balance of efforts between Member State in receiving such persons and bearing the consequences thereof, 20 July 2001, Council Directive laying down minimum standards on the reception of applicants for asylum in Member States 2002, Proposal for a Council Directive on
minimum standards on procedures in Member States for granting and withdrawing refugee status, 20 September 2000.
10 Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, 2003
Useful guidance can also be found in a some national guidelines, handbooks or training courses, which have been developed on the handling of child applicant cases.11
According to UNHCR 1997 Guidelines, “Although the same definition of a refugee applies to all individuals regardless of their age, in the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child’s stage of development, his/her possibly limited knowledge of conditions in the country of origin, and their significance to the legal concept of refugee status, as well as his/her special vulnerability. Children may manifest their fears in ways different from adults.
Therefore, in the examination of their claims, it may be necessary to have greater regard to certain objective factors, and to determine, based upon these factors, whether a child may be presumed to have a well-founded fear of persecution.”….
“The final decision should be based on a case-by-case examination of the unique combination of factors presented by each child, including the child’s personal, family and cultural background. Therefore, it is important that persons involved in the refugee status determination procedures have an understanding of the history, culture and background of the child.”12 While children might be exposed to different forms of persecution, they may also suffer in different ways. The subjective fear might often be stronger than in the case of adults. Children have lower tolerance to harm and are at greater risk of suffering trauma or other effects of violence.13
These instruments and guidelines address the needs and rights of children and call for child-appropriate and child-sensitive treatment of children in the various situations that children might find themselves at different times and locations.
Children have rights and needs which are similar to adults, but more importantly they have needs and rights which are specific to children because their
experiences and situations are different. In this study this is my focus: how are children treated in the refugee status determination process and is this treatment child-sensitive and child-appropriate according to international standards and guidance? I have focused on how child applicants are treated in the interview; I have looked at whether child-specific persecution is acknowledged and given sufficient attention and consideration; I have looked at other child-specific aspects such as imputed political opinion as well as other reasons for persecution in relation to children; and finally I have looked at the special case of torture, cruel, inhuman and degrading treatment of children and how this is dealt with in
11 Among others: ”Child Refugee Claimants: Procedural and Evidentiary Issues” Immigration and Refugee Board, Ottawa 1996; Guidelines for Children’s Asylum Claims” US Department of Justice, Washington DC, USA 1998; Guidelines for Interviewing (Separated) Minors” Directorate of Immigration Finland, Helsinki 2002
12 UNHCR 1997 Guidelines, paras 8.6 and 8.10
13 UNHCR Draft Guidelines: “Age-Sensitive Interpretation of the Refugee Definition as Contained in Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees” – Still not finished.
the process of refugee determination. It should be emphasized that given the limited scope and depth of this pilot project, the findings are preliminary and need further follow-up work.
1.3 Methodology
As this is a small-scale pilot project, the collection of data had to be limited.
Consequently, it was decided to only collect the asylum decisions on children as a start. Interviews with case-workers, other decision-makers, lawyers, guardians, children among others as well as observations of interviews are beyond the scope of such a limited project and would have to come at a later stage. The vast majority of decisions on children are on separated children, but there are a few cases of children in families, which have been included because they are relevant.
This will become evident as they are brought into context.
By ‘decision’ is meant the actual document where the decision is stated in writing.
In addition, the transcript of the interview and any comments/statements that have been made by the case-worker, lawyer, psychologist, medical doctor or anyone else in the file material have been included. The analyzed cases from Norway and Austria virtually all contain the transcripts of interviews, while not so many of the German and Swedish cases do.
The decisions were collected by travelling to the 4 countries and collecting case- files either from the authorities or through UNHCR for the period 2000-2003. For Austria, though, files from 2000 were not available. Prior to the travels formal letters applying for access to the file material were sent off from the UNHCR offices covering those countries and granted by the respective authorities. In Austria and Germany, the files could be accessed in the UNHCR offices as they keep file material. Norway and Sweden are covered by a regional UNHCR office in Stockholm, which however, does not have any case-files. Therefore, the files from Norway were accessed in the offices of the Directorate of Immigration. In Sweden the authorities preferred to select the cases and send them by mail, and in the end a total of only 35 were received. Fortunately som cases were received from a lawyer and the Save the Children Sweden “Crisis Center for Children and Young People” (hereinafter ‘Crisis Center’), which gave a total of 45 cases from Sweden.
In the other three countries I had access to a total of around 3-400 cases from which around 100-150 cases were selected . From these cases 30-40 were selected which resulted in a total of around 150 including around 40 from Sweden. These provide the basis of the findings in this report. They have been semi-randomly selected by controlling for country of origin, gender, and type of decision in both 1st and 2nd instances. That is, cases were randomly selected from the most frequent countries of origin, by ensuring that there were a good number of female cases, a mixture of 1st and 2nd instance decisions and type of decisions.
No ‘Dublin-cases’14 or readmission cases between the Nordic countries have been included, nor have cases with serious doubt about the identity, age and country- of-origin been included.
Due to the limited time and scope, in the end the focus was primarily on the 1st instance decisions, although some 2nd instance decisions have been included.
There is an attempt to use case examples and quotations in a balanced manner. It should be emphasized, though, that the examples and quotations are only used to illustrate a theme, an issue or aspect. As the positive 1st instance decisions from Austria on both refugee recognition and non-refoulement include very little explanation and there were only 5 positive cases from Sweden, more positive cases from Germany and Norway have been used as examples.
What the statistics and data do not sufficiently reflect is the high numbers of children who disappear during the procedure and before a decision has been made. This is a considerable problem in Austria where it is estimated that around 80 percent disappear15, but also in Norway and Sweden where significant
numbers disappear. The cases of disappeared children are closed and appear in the statistics as ‘closed cases’. Another complication is the issue of age assessment. As a result of age assessment in 2003 of around 50 percent of all those who stated to be under 18, it was found that around 80 percent were over 18. Similar estimations have been made in Austria16, that a high percentage is in reality over 18. The issue of children posing younger, or in some few cases older, than they are is a phenomenon in all European asylum countries.
However, these issues are not believed to have any significant bearing on this study as the focus is on the substance of the asylum claim.
Another methodological problem is the fact that policy and practice on asylum decisions are changing all the time and although the data are relatively recent, changes have already happened to a certain extent. For example, in Norway there has been a significant increase in refugee recognition just the last half year and in Sweden interviews are in the process of changing significantly. Consequently, some of the preliminary findings of this study might not be quite in line with the most recent changes. This should however, be corrected in a follow-up study when it will be possible to have a more in-depth analysis and discussion including ongoing policy changes.
For the sake of comparison, I have attempted to use the same terminology
regarding type of decision although they do not have the exact same definition in
14 Whereby an applicant has been sent to an EU Member State according to the “Council Regulation (EC)No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.”
15 According to NGO and UNHCR Austria observations
16 ibid
each of the four countries. Four terms are used: refugee recognition, protection on humanitarian grounds, residence on humanitarian (compassionate) grounds and rejection. Refugee recognition means that a person is considered a refugee as defined in the Refugee Convention. Humanitarian protection is used about the persons who are determined to be in need of protection based on “refugee-like”
situations involving the threat to life or security. 17 Residence on humanitarian grounds is used about those persons who are granted residence due to special health or other compassionate considerations, such as the absence of primary care-givers in the case of separated children. Rejection means that a person has been denied refugee recognition, humanitarian protection and residence.
2. Statistics and Asylum System in 4 Countries
2.1 Statistics
There are no official statistics on separated children in Austria, although the Ministry of Interior provides estimates on the number of applications and the data from UNHCR on decisions is relatively accurate. In Germany, the Federal Office for the Recognition of Foreign Refugees only provides application data on
separated asylum-seeking children under 16 years of age, subdivided into gender, age and countries of origin. Data on decisions are not available. In Sweden and Norway official statistics exist on total number of applicants and decisions by country of origin, gender, age and by type of decision.
Decisions in Austria: According to the information available18, there were approximately 120 1st instance decisions in 2001. Of these 3 were recognized as refugees (2 girls and 1 boy). 8 were girls, which is almost 7 percent of the total.
The most common countries of origin19 were Nigeria (45), Afghanistan (12), Sierra Leone (9), India (8), China (8), Bangladesh (6), Turkey (4).
In 2002 there were a total of around 200 1st instance decisions. 9 cases were females, which is 4.5 percent. There were no cases of refugee recognition, but 38 cases of humanitarian protection, which is 19.5 percent of the total. All except 5 were from Afghanistan and the other 5 were from Somalia, Mauretania,
Yugoslavia, Russia and Armenia. A quite significant number (88) of applicants came from Nigeria. The majority of the rest were from Afghanistan (33), India
17 Rights derived from the ECHR, Articles 2 and 3, among others
18 The data were attained by a screening of all first and second instance decisions shared with UNHCR during the reporting period. Therefore, it should be noted that the figures do not necessarily include all decided cases. Some might not have reached UNHCR or they might not have been identified in the UNHCR screening mechanism.
19 These are nationalities stated by the applicants, which are not necessarily correct. There are, for example, a number of false nationalities in Austria, in particular those who claim to be from Sierra Leone.
(11), Sierra Leone (11), China (5), Senegal (5), Russia (5), Guinea (4) and Georgia (4).
During the first 9 months of 2003 there were around 350 decisions from the 1st instance, of which only 2 were recognized as refugees (ie. 0.6 percent) while 17 were granted humanitarian protection (4.8 percent). 28 of the total number of cases were female, which is 8 percent. Again a significant majority came from Nigeria (128), while other common countries of origin were India (25), Gambia (22), China (22), Georgia (19, Afghanistan (18), Sierra Leone (12), Russian Federation and Moldova (12), Guinea (11), Turkey (10).
Compilations of data have been made by UNHCR on received 2nd instance decisions from 2002 and for the first 6 months of 2003. In 2002 45 decisions were made, of which 2 were cases of females. 2 were recognized as refugees and 2 were granted protection on humanitarian grounds, which does not increase the recognition rates significantly for that year. It raises the refugee recognition from 0 to 1 percent and the non-refoulement (humanitarian protection) decision rate from 19.5 percent to 20.5 percent. During the first 6 months of 2003, among the cases UNHCR had received 3 were recognized as refugees and none were granted humanitarian protection. This raises the recognition rate so far in 2003 on refugee recognition from 0.6 to 1.1 percent.
Applications in Germany: The number of separated children seeking asylum in 2002 was 873 under 16 years of age, which was a decrease from 1075 in 2001 and 946 in 2000.20 The largest groups were from Afghanistan, Vietnam, Angola, Ethiopia, Iraq, Turkey, India, Syria and China. 560 were boys (64 percent) and 313 girls (36 percent), which is a significant higher number of girls compared to the other three countries and to most other countries in Europe.
There are no official nation-wide statistics on the number of applications for the 16-17 year-olds. In Bavaria, however, the authorities counted 390 separated minors aged 16 to 18 in 2003, compared to 81 under 16, which means that the number of under 16-year olds has to be multiplied by 5.8 in that state to get the number of the 16-18-years old. If one makes the same calculation with regard to the 873 children under 16 who were registered nationwide and multiply this figure also by 5.8, the total number of separated children belonging to the 16-18 age group amounts to 5,063 in 2003, a figure which yet seems somewhat too high according to UNHCR estimates. In general, the 16/18 age-group (accompanied and unaccompanied) accounted for approximately 10% (i.e. 7,067 out of all 71,127 first applicants) in 2002.
Decisions in Germany: There are neither official statistics nor unofficial estimates on decisions on separated children in Germany. However, it is hoped that after the Federal Asylum Office is finished installing the new data-system official statistics can be produced.
20 Source: Federal Office for the Recognition of Foreign Refugees
Decisions in Norway on separated children follow the same trend as adults.21 In 2000 out of 456 decisions, 3 were recognized as refugees, 148 were granted protection on humanitarian grounds, 97 were granted residence on humanitarian grounds, while 62 were rejected. In 2001 out of a total of 480 decision, 1 was granted asylum, 142 were granted protection on humanitarian grounds, 181 were allowed residence on humanitarian grounds, 116 were rejected; there were 5 Dublin cases, 17 disappeared and 12 were withdrawn. In 2002 out of a total of 649 decisions 10 were recognized as refugees, 182 were granted protection on humanitarian grounds, 162 were granted residence on humanitarian grounds, 169 were rejected; there were 53 Dublin cases, 61 disappeared and 10 withdrawn. By 1. October 2003 out of 495 decisions, 18 had been recognized as refugees, 149 had been granted protection on humanitarian grounds, 103 had been granted residence on humanitarian grounds, 162 had been rejected, 35 had been determined to be Dublin cases, 24 had disappeared and 4 had been withdrawn.
Decisions in Sweden: Like Norway, Sweden has a relatively low refugee recognition rate and a higher recognition of protection on humanitarian grounds.
During 2002 there were 39 393 decisions from 1st and 2nd instance boards, of which a total of 482 were recognized as refugees, 6969 (ie. 17.7 percent) were recognized as “in need of protection” on humanitarian grounds and 31 122 (79 percent) were rejected. Although official statistics from Sweden on separated children decisions were not made available, it was claimed that in 2001 and 2002 most of the separated children were granted residence on humanitarian
(compassionate) grounds, while in 2003 it is estimated to be around half. Most of them are granted residence on humanitarian grounds because care-givers cannot be found in the countries of origin.22
2.2 Asylum Law
All four countries are Parties to both the Refugee Convention and the CRC.
However, Germany has made a reservation to the CRC which results in national asylum/immigration legislation taking precedence over the CRC. In practice this means that the age of legal competence in the asylum process is 16 years of age and not 18, and that consequently, 16 and 17 year-olds are treated as adults.
In Austria Article 1 (2) of the Asylum Law provides for the recognition of refugees according to the Refugee Convention. There are two other protection
21Norway has in the past had an unusually low rate of refugee recognition, but relatively much higher rate of recognition on humanitarian grounds. The overall number of decisions in 2000 were 97 refugee status (ie. 1 percent of total number of applications) and 2856 (ie. 29 percent of total applications), in 2001 the number was 292 refugee status (2.2 percent) and 4036 (30.3 percent) and in 2002 it was 332 refugee status (2.2 percent) and 2958 (ie. 19.2 percent) humanitarian status.
22 Information from staff member at Migration Board. Official statistics have not yet been received from Sweden.
regimes, Articles 8 and 15 of the Asylum Law by way of reference to Art. 57 of the Aliens Law, which provide for protection against refoulement, that is
permission to stay for those persons whose rejection at the border, forcible return or deportation would be in violation of Article 2 or Article 3 of the ECHR or Protocol No. 6 thereto, concerning the abolition of the death penalty. Thus those persons are protected who risk the death sentence, cruel, inhuman or degrading treatment on grounds similar to those applicable to refugees if returned to their country of origin. Article 29 provides for temporary protection.
In Germany, according to Art. 16 a (1) of the Constitution (Verfassung oder Grundgesetz), "politically persecuted enjoy the right to asylum" and are thus entitled to automatically obtain a permanent residence permit. Although Art. 16 a 1 of the Constitution does not explicitly incorporate the wording of the 1951 Convention, the prerequisites of the Constitutional right have been interpreted by German courts with reference to Article 1 A (2) of the 1951 Geneva Convention.
The right to asylum under Art. 16 a (1) of the Constitution is, however, subject to certain substantial restrictions as provided for in Art. 16 a (2) and Sections 27 and 28 of the Asylum Procedure Act. Accordingly, aliens who have entered Germany via a member state of the European Union or another country assumed to be
"safe" by the German legislator, are excluded from the right to asylum as well as those who have already found protection in another third country. In addition, asylum cannot be granted to aliens whose fear of persecution is based solely on (political) activities which they have undertaken voluntarily during their stay in Germany.
Persons not found eligible for asylum for one of the above-mentioned reasons may nevertheless be entitled to benefit from Sec. 51 of the Aliens Act
(Ausländergesetz). This provision regulates the (non-) return of aliens to a country where they may be subject to persecution on account of one of the 1951
Convention grounds. Aliens recognized as refugees under Sec. 51 Aliens Act are in principle entitled to all Convention rights, but contrary to those entitled to asylum, they only receive a - renewable - temporary residence permit valid for a maximum of two years and are required to fulfill certain prerequisites prior to family reunification.
Besides the named provisions, the German Aliens Act contains a set of
regulations under which it is possible to grant or temporarily allow the stay of an alien who would otherwise be subject to deportation. The most important of these provisions are stipulated in Sec. 53 Aliens Act. Accordingly, an alien must not be deported to a state where, upon return,
- he/she would face an individual danger of being tortured (Sec. 53 (1) Aliens Act),
- he/she would be prosecuted for having committed a crime sanctioned with the death penalty (Sec. 53 (2) Aliens Act), or
if the deportation would contravene the provisions of the ECHR (Sec. 53 (4) Aliens Act). According to Section 53 (6) Aliens Act, the competent German
authorities can further desist from deportation if the applicant of concern would face a certain individual risk of life or limb upon return. In 1993, the Aliens Act was amended to include a special status for refugees from war or civil war
situations (Sec. 32 a Aliens Act). The issuance of a temporary residence permit in accordance with Section 32 a Aliens Act provides, however, that the applicant does not file an asylum procedure or - if already initiated - withdraws the asylum application.
In Norway the specific relevant laws governing asylum and immigration are the Norwegian Aliens Act no. 64 of 24 June 1988 and the Aliens Decree of 21 December 1990, both amended in 1997 and 2000. The Act on Human Rights of 1999 incorporates a number of international human rights instruments, such as the ECHR. Section 16 (§ 17) of the Aliens Act refers to article 1A of the Refugee Convention. Section 15 protects against refoulement and also similarly protects persons who would be in danger of life and limb, or be subjected to inhuman treatment. If section 15 does not apply, one has to determine whether Section 8 would apply, which states that permission to stay may be granted if there are strong humanitarian reasons or a particular connection with Norway. Paragraph 21.1 provides for granting protection on humanitarian grounds, paragraph 21.2 provides for granting residence on humanitarian grounds due to strong
compassionate considerations such as illness or lack of caregivers.
In Sweden the asylum procedure is governed by the Aliens Act, the Aliens Ordinance and the Legal Aid Ordinance. Chapter 3 of the Aliens Act, Section 2, contains the 1951 Convention refugee definition including language on non-state agents of persecution. Chapter 3, Section 2 refers to three categories of people, those “with special protection needs” (ie. a well-founded fear of death penalty, torture, other cruel, inhuman treatment or punishment), those who cannot return because of environmental disaster or armed conflict and those who have well- founded fear of persecution due to gender or homosexuality. Chapter 2, Section 4(5) specifies the conditions in which persons can be granted residence on humanitarian grounds, which would include the cases of children whose care- givers cannot be found in a known place.
2.3 Asylum Procedure
In Austria the Federal Asylum Agency, Bundesasylamt (BAA), makes the first instance administrative decision. Appeals go the second-instance Independent Federal Asylum Senate, Unabhaengiger Bundesasylsenat (UBAS), and in the regular procedure have to be submitted within two weeks. In general, decisions by UBAS are final, but an extraordinary complaint against a negative UBAS decision may be lodged with the Higher Administrative and/or Constitutional Court if matters of simple law or violations of Constitutional law are alleged.
The Higher Administrative Court rules only if mistakes have been made due to the legal assessment, lack of competence on the part of the deciding authorities
or procedural errors or deficiencies. If this is found, the case is sent back to UBAS. The criteria for granting refugee status are listed in Article 7 of the Asylum Law, which refers to the Refugee Convention. Humanitarian protection is considered and is granted to those who cannot be returned according to the principle of non-refoulement. In this case a residence permit is given for a maximum of one year, which can be extended first by one year and after the second extension, for three years.
In Germany, decisions on asylum or refugee status lay with the Federal Office for the Recognition of Foreign Refugees. According to Sec. 14 (1) Asylum Procedure Act, any person requesting asylum is referred to the Federal Office branch assigned to the local reception center competent for receiving the alien under Sections 45, 46 Asylum Procedure Act. Actually, there are 24 initial reception centers throughout Germany. Under exceptional circumstances, applications can be made at the Federal Offices headquarters in Nuremberg, for example if the applicant is in detention, official custody, in a hospital, or a youth welfare facility (Sec. 14 (2) cf. 2 Aliens Act), or, generally, if the applicant is under 16 years of age and his/her representative is not obliged to reside in a reception centre (Sec. 14 (2) cf. 3 Aliens Act).
With respect to Art. 16 a of the Constitution and Sec. 51 Aliens Act, the decision made by the Federal Office can be positive, "simply" or "manifestly" unfounded, or "irrelevant". The decision concerning humanitarian status according to Sec. 53 Aliens Act can be either positive or negative. Against the decisions of the Federal Office, applicants can appeal before the local Administration Courts. It should, however, be noted that in a case held "manifestly unfounded" or "irrelevant" by the Federal Office appeals against the status decision of the Federal Office do not constitute a right of the applicant to stay in Germany for the duration of the procedure. To that effect, an additional request for suspension of deportation must be made before the court. The judgements of the administrative courts are, if admitted, subject to further appeal before the Higher Administration Court, whose decisions can be revised by the Federal Administration Court. However, no legal remedies except for filing a constitutional complaint are given if the administra- tive court has rejected the first instance claim against the Federal Office decision as "manifestly unfounded". Finally, a complaint can be filed with the Federal Constitutional Court if a personal constitutional right is allegedly breached.
In Norway an asylum application is handled by the Directorate of Immigration (Utlendingsdirektoratet, UDI) at the first instance level. Appeals first go to UDI and if UDI does not reverse its first decision, they refer it to an independent, non- political body called the Immigration Appeals Board (Utlendingsnemda, UNE).
There is no requirement that appeals can only be submitted if there are new elements. Since the great majority of separated children are permitted to stay on humanitarian grounds, very few appeals by children end up at UNE. A decision from UNE is possible to appeal to the regular courts, but the few cases that have
been reviewed have generally respected the decisions already made in the first and second instances.
In Sweden the Swedish Migration Board (Migrationsverket) is the first instance body which assesses and makes the decision on the initial application. Appeals to these decisions may be submitted to the Aliens Appeals Board
(Utlaenningsnaemnden), an independent body consisting of judges, members of Parliament and legally trained case-workers. Exceptionally, cases may be
referred to the government by either the Migration Board or by the Appeals Board for review, if they involve sensitive policy issues or the relations to other
countries or international organizations.
2.4 Special Provisions for Separated Children
In Austria the Aliens Law also contains some special provisions for separated children. According to Article 25 of the Asylum Law all children should be represented by a guardian from the local Youth Welfare Agency
(Jugendwohlfahrtstraeger) to represent them in the asylum procedure. However, those children who are between 14-18 years of age may submit an asylum
application in their own right if their interests cannot be defended by their legal representative in the procedure, the guardian. Article 95 of the Aliens Law provides further details for guardianship, legal representation, and age assessment of separated children.
In Germany aliens under 16 years of age do not have legal competence within the framework of the asylum and aliens law and therefore have to be represented by a guardian according to the Civil Code. The guardian, who is appointed by the local court, may be a youth welfare officer, an NGO representative, a relative of the child or any interested individual who is considered as reliable by the court.
Asylum applications are filed by the guardian on behalf of the child. A few years ago 40 adjudicators were specially trained to act as so-called Special
Commissioners for Child Refugees. The training, in which UNHCR was closely involved, included legal, psychological and practical aspects of the asylum procedure of separated children. However, due to re-organization, some of these trained adjudicators were moved to other jobs and as a result some of those dealing with child-cases presently are not specially trained.
In Norway all separated children are to be appointed a guardian who among many other tasks, will be present during the asylum interview. There is special guidance on the treatment of (separated) child applicants in the interview, and special training exists for those who interview and assess children’s cases.
Separated children are allowed to submit an asylum application in their own right.
Interviews are normally conducted 2-3 weeks after the asylum application has been registered. According to the UDI Annual Plan for 2003 it is stated that applications from separated children are to be processed immediately and first
instance decision finalized latest within 12 weeks of filing the application.
However, the deadline can only be respected if a guardian has been appointed.23 In reality, it is estimated that it usually takes a bit longer, maybe up to six months before the first decision is made. Separated children receives free legal aid and in a new draft on legal aid the authorities will increase the number of hours of free legal aid in both first and second instances.24
Sweden is the only country which has included in the Aliens Act a reference to the principle of “the best interests of the child” from Article 3 of the CRC.25 However, this principle has to be balanced against other interests of the state, such as regulating immigration. In Sweden there has been an ongoing debate about children’s right to apply for asylum in his/her own right or whether it has to be done by a guardian. The question has still not been fully resolved and for the time being it’s possible for a child to submit his/her own application. Case-workers have been specially trained on interviewing children and there is guidance in the interview manual. It will be replaced by the new system on interviewing and considering children’s cases, see point 3.1 below.
3. Findings
3.1 Interviews: Questions and Line of Questioning
According to the UNHCR 1997 Guidelines “It is desirable that all interviews with unaccompanied children (including the interview for the determination of refugee status) should be carried out by professionally qualified and specially trained persons with appropriate knowledge of the psychological, emotional and physical development and behaviour of children”…. ”the interviews should be conducted by specially qualified and trained representatives of the refugee determination authority who will take into account the special situation of unaccompanied children, in order to carry out the refugee status assessment.” 26 Questions need to be simple, open-ended, straightforward and understood clearly by the child. Too complicated and long sentences should be avoided. Questions should be direct and related to children’s life-worlds and according to their level of development and maturity.
It is not possible to comment on the methods used in the interview, nor the atmosphere. In addition, detailed information on the special training of staff was not collected at this stage. However, from the data collected it is possible to say
23 According to new regulations in force as of February 2004
24 Consultation procedure 02/821-85 HBO
25 “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 1989 CRC, Article 3, 1.
26 UNHCR 1997 Guidelines, paras. 5.12 and 8.4
something about the types of questions asked and the line of questioning and whether these are child-sensitive or not.
All four countries apply a standard format, a list of questions or a questionnaire, which is more or less the same for children as for adults. It starts with
biographical data including information about family members, then continues with the travel route, and moves on to the reasons for flight. Then follow
questions about what they fear if they are returned or what they think will happen if they are returned. It was found that questionnaires or standard line of
questioning was usually followed without much deviation. In Sweden often, rather than including the transcript itself, there is a thorough report of the interview. In Norway the interviews sometimes quote parts of an UDI internal memo on interviewing children27, usually three specific paragraphs. It offers guidance on how important it is to differentiate between children of different ages and maturity and it states that those children who are over 15 can be interviewed as adults if the case-worker considers this appropriate. It is also stated that the reporting format should be followed and in which cases it could be deviated from.
It is emphasized that establishing the facts around family relations is important in view of future family reunification. Therefore, additional questions referring to the possible whereabouts of their parents are included.
Simple/difficult questions: It was found that often difficult questions were posed, questions that would even be quite difficult for adults were asked of children. For example, a child would be asked a question which is more or less a rephrasing of the Refugee Convention text definition of a refugee: “have you left your country because you have been persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion?”28 A question like this is difficult for an adult, let alone a child. Similary, to ask a child what will happen to them if they are returned home or what they fear upon return might be, depending on age and maturity, is inappropriate or too difficult.
They might not have enough information or understanding of the situation in their home country. Other typical questions which might be too difficult, taking level of education and development into account, are a series of questions which are asked to establish credibility. For example: “What’s the name of the president in zz (country)? -- Since when has he been president? -- Which parties are
represented in parliament at the moment? -- Could you name the provinces which border on the capital city? --- Could you describe the flag? –Could you provide the names of the daily newspapers of zz? What is the acronym of the state TV of zz? -- Could you name the coastal cities of zz?”29 and so on.
Open-ended or closed questioning: Although the general impression is that the questionnaire with the more detailed questions is followed, there are also
examples from all countries of more open-ended questioning where the children
27 Utkast til en intern melding (IM) om gjennomforing av asylintervjuer UDI
28 Found frequently in cases from all four countries.
29 Case from Austria
are given the opportunity to talk more freely. For example, there are several cases from Austria where the child tells her/his story in one long monologue and then asked more concrete questions about the more important aspects. “Could you describe freely all your motives for leaving the country? Could you tell us all of the reasons you have for your movements.” There are similar examples from the other three countries where the child has been able to “tell the story”.
However, there are many examples of the short and closed questions, which are not very conducive to getting sufficient information from children, nor do they necessarily create a good interview atmosphere. For example, in one interview in Norway of a girl from Somalia, she is asked lots of short and leading questions:
“Have you been subjected to abuse? Yes —Which month did it happen? In May zz(year). -- What was it that happened? I was raped. -- Did it happen during the day or during the evening? -- In the evening. Did both of them rape you? Yes. -- Did they hit you, too? -- Yes. -- They hit you too? -- Yes, with the fist. -- Who dressed the wound? -- They did it at the drugstore. -- Did you go to zz(country) the same day as the rape took place? -- No, I….” The short and detailed, closed questioning seems mechanistic, insensitive and not very helpful to the situation.
Neglected sources of information: The case material also shows that statements that might lead to important information, are not followed up. For example, in a case from Austria, a boy had been in the hospital as a result of self-inflicted wounds. However, the fact that he had wounded himself quite badly, was not queried or mentioned during the whole interview, while it might have been a ‘way in’ to some important information. In another case from Norway a girl from Congo who claimed to have been raped and tortured in police custody showed clear signs of suffering. It is noted in the interview that “the applicant has nerves.
Tears stream continuously and she has a headache. She has severe pains during her period.” However, the interview notes give sparse information about this incidence and her situation in general. It would be important to get more information both about the situation surrounding what she experienced before flight and her mental and physical state at present.
There are, however, examples of interviewers picking up on important details.
For example, in a case from Austria a girl from China says that the Chinese smuggler/trafficker who arranged her trip wanted to have sex with her, upon which the interviewer followed up with the question: “Did you leave your home country at your own will, or was the proposal for sexual services the reason for your departure?-- No, I left on my own accord and these circumstances did not have anything to do with my departure.”
Child-oriented and child-sensitive questioning: There are not many examples of questions which are ‘child-oriented’, that is questions which are more oriented towards children’s experiences and knowledge. However, there are some. For example in a case from Germany when a boy from Angola could not answer what were the names of the parties fighting each other in the war, the interviewer asked
whether they had a national football team, whereupon the boy became more talkative. Talking about the everyday things in a child’s life and typical interests of children is often an effective way to encourage children to talk.
There is another good example from Germany where the interviewer is especially sensitive to the fact that the asylum applicant is a girl and a child who has
experienced traumatic situations. A 15-year-old girl from Sri Lanka was abducted by soldiers, raped and otherwise severely abused. The interviewer stopped the interview when it was obvious that the claimant had serious problems answering the questions about why she had left Sri Lanka. “At this point the interview was interrupted. It was obvious that the applicant had great difficulties to talk about these incidences. She was allowed to continue the interview with a woman. The guardian, however, asked if it would be possible to continue in a later interview.”
In a case from Sweden a child from Chechnya was asked about the relationship to his parents and they talked about that. “You have had a good relationship to your parents. Your father is the person whom you are closest to and you are worried because you do not know where he is.” The circumstances around his parents and family were discussed at length, his physical and mental condition (he is HIV and Hepatitis B positive) as well as his flight and travel route. Then towards the end of the interview, the case-worker asks him about a dream he had had and whether they could discuss it. “…and he replies yes, but I don’t understand it. The caseworker replies that doesn’t matter, we can help each other to see if we can interpret it? Xy says that he thinks it’s a bit sensitive to tell about it, he is a bit embarrassed and says that he has not told the whole dream to his lawyer.” He continued to tell about the dream and they discussed it. In urging the boy to tell about his dream the caseworker was trying to create trust and understanding between them.
New Developments in Sweden: Last year the Migration Board introduced a new interview format for children.30 The reason for the change of interview method was to improve the assessment of children’s need for protection and the communication with them. The Board started a cooperation with an expert31 who had, among other things, trained police and social workers in how to talk to and interview children who were victims of abuse. In cooperation with the Board she developed an interview and assessment method and at the beginning of 2003 the first group of staff members started a training course which lasted one year. The 15 participants met twice per month and during the training used actual cases for practice. The training included theoretical framework, child psychology, cultural perspectives, interpretation and assessment of children’s testimonies and
statements. The role of the interpreter is also in focus, but has become a separate research project. The main principles of the new method is to have as many open questions as possible and avoid leading questions and comments. The common
30 although all of the cases for this study follow the old format and it should be born in mind that the comments on Sweden do not take the new changes into consideration.
31 Ann-Christin Cederberg, who among other things, has written the book: “Barn – intervjuer”, Liber 2000
phrase is “tell me….why you left your home…..how you and your family
lived…….how your life is in Sweden… what you think about your future…..etc”.
The aim is to go more directly to the reason for flight rather than going through the other questions first. Furthermore, the child becomes the center of the
interview and controls it more than before, as they are not interrupted so often by the guardian and legal advisor. It is believed that most of the essential
information will come out in the testimony and that more detailed information still lacking will be asked for underway or afterwards. This method reduces the repetition which tends to happen with the questionnaires and the experience so far, is that less time is needed on the interviews than before.
In general, it was found that the type of questions and line of questioning were not specially geared towards children. Questions need to be more simple, open- ended and more flexibility should be shown so that children can ‘tell their story’
without much interruption and so that important pieces of information can be pursued. There should be more questions related to children’s different realities which help them talk and feel more relaxed.
3.2 Credibility and Evidentiary Issues
Assessing the credibility of an asylum claim is crucial, but even more so in the case of children. In the cases of children, it is not only essential to establish credibility for the sake of the refugee status determination, but to make a long- term decision for all children which is in the “best interest of the child”, whether or not they have a refugee claim. It is therefore essential to get as close as possible to the ‘true story’ of the child. Establishing credibility in the cases of children might be very difficult. On the one hand, the children are often told by parents and/or smugglers (or traffickers) to tell a certain story which they believe is the best for the child to tell but not necessarily the truth. On the other hand, it is the nature of children, depending on their age and stage of development, not to be fully aware of the circumstances and what is important information. Children most likely have multiple reasons for leaving their countries and they do not necessarily tell the most refugee-relevant reasons. For the child the wish to go to school or find work might be the most important and most present in his/her mind. This does not necessarily mean that he/she does not need protection as a refugee. Furthermore, children do not necessarily tell consistent and
straightforward stories. They might make statements which they have been told to say; they might tell lies which to them are not necessarily a lie. The behavior and demeanor of a child is often a reflection of culture, trauma and circumstance rather than credibility. In general , the burden of proof should be exercised flexibly and liberally, and this is particularly important in the case of children as is the principle of giving them the benefit of the doubt.32
32 UNHCR Handbook, paragraphs 196-219
Behavior and Demeanor
Several cases show how a certain behavior or demeanor is used against the
applicant. For example, in an Austrian case the following was concluded: “Since you, however, seemed little affected by your past experiences and were not able to give details about it, the authorities were led to the conclusion that your entire testimony is an unbelievable construction.” The behavior and demeanor of the boy was used against him as he did not seem to be affected by the particular (bad) events in his past. It was also used against him that he was not able and willing to give details to substantiate his story. This led the authorities to believe it was an untrue, constructed story. This may be the case. However, the fact that the boy showed no emotions or behavior in connection with his past experiences does not necessarily mean that he is lying. There may be valid reasons why a child cannot provide details. He might not understand why details are asked for, he might have suppressed or ‘forgotten’ them if they have to do with traumatic experiences.
In another case from Germany the fact that a boy disappeared before the decision was made became critical among other things, in his case. “It can be expected from an asylum-seeker that he pursues the asylum procedure thoroughly; in particular he should show that he has a self-interest in the desired decision of the Federal Office to get protection, ie. he will pursue this objective during the whole process of the asylum procedure…” The fact that this boy disappeared was regarded as disinterest by the boy according to Section 33 of the Asylum
Procedure Law which obliges the applicant to ‘pursue his/her application’. In the case of adults, this might be a reasonable line of argument, but for children/youth not necessarily. Children disappear for a variety of reasons. They disappear to move on to another country where they might have family or relatives or have been instructed to go. Some disappear because they get caught up with traffickers or other criminals. They might be coerced or forced to leave or they might leave because they are afraid.
Contradictions – Inconsistencies - Lies
Contradictions, inconsistencies and even lies in children’s testimonies should be treated in a more flexible and open manner than in the case of adults. However, there are many examples from all four countries which illustrate that this is not done. In a case from Austria, the following was stated in the case of a boy from Turkey: “At the first interview you testified that ‘due to the political situation in Turkey there are great economic problems. I had no work and we were hungry.
Therefore I fled.’ Today you do not mention these reasons at all. Could you explain this? --- There were Arabic interpreters. There I was not specifically asked about political problems. --- Now, which version represents the truth?”
The fact that the boy did not mention the same reason for flight in the second interview is not necessarily a contradiction. His response may be a typical
reaction of a child: he was not asked specifically about the political situation, so he did not say anything about that.
In a case from Norway a boy on two separate occasions gave different information on the number of months of reporting duty to a military base (5 months and 6 months). This was found contradictory and inconsistent and did have a bearing, among other things, on the decision to reject him.
In another case a child says he was recruited by the SPLA and the interviewer does not believe him: “’How can you explain that according to the background information the Southern Sudan People Liberation Army is not involved in forced recruitment of children’ -- ‘But it happens!’” Generally, the cases in this study show that the case-workers do good and thorough country-specific research.
However, in this case the case-worker finds a boy not credible based on wrong factual information about a ‘child-specific’ situation. It is well-known33 that over the years thousands of South-Sudanese boys have been (forcibly) recruited to SPLA, that many of them ended up in UNHCR-supported refugee camps in Ethiopia and Kenya, and that some subsequently resettled in the United Sates.
Mixed Motives for Flight
Typical of separated children is that they often have mixed motives or several reasons for flight, that is, fear of persecution combined with economic and educational incentives34. Children normally wish to (continue to) go to school, they would like to have a job and earn money, they would like to have better living conditions, some need special health-care, among other things. However, it does not mean that they do not have refugee reasons for leaving their countries as well. For example in a case from Austria the following statements were made regarding a boy from a West African country: “In your asylum application from zz(date) the following reasons are stated: in order to have a safe life, my main problem was, that I would like to continue to go to school. Due to the war my parents were killed. I have nobody who can help me further with my education.-- - You have traveled to a neighboring country, because there were so many displaced people there, you moved on. --- Yes, the statements are correct, we passed Guinea by boat, we only passed by. -- Your statements from zz (date) contradict, however, your statements today. What do you have to say to that?”
Although the boy expressed a wish to continue to go to school it should not be excluded that he might be fleeing persecution as well.
The case material shows that child-appropriate treatment with regard to these credibility aspects seems to be applied only on an exceptional basis. If they are too vague and do not give enough detail in telling the story, this is used against
33 Various UNHCR documents and newspaper articles, mainly American, reported on in SCEPNewsletters in 2001 and 2002
34 Bailliet, Cecilia ”Study of the Grey Zone between Asylum and Humanitarian Protection in Norwegian Law and Practice” University of Oslo, 2003
them. If they give a ‘non-refugee’ reason for fleeing the country it is used against them. If they disappear it is used against them. If they tell ‘lies’ it is used against them. If they are inconsistent or contradictory in their statements it is used against them. Many interviewers are eager to focus on contradictions and spend some time around such questioning. They are asked the same ‘trick’ questions as adults and contradictions might be given significant weight in such assessments. It seems that too often when the credibility is found weak, it is not followed up on and getting to the bottom of the story is not prioritized.
It should be noted, though, that in Norway case-workers have recently been instructed to “decrease the control-level”35, that credibility in the cases of
children should be treated in a more flexible manner. Evidence seems to be more of a focus in Sweden than in the other three countries, and it seems that children are not treated any differently from adults in that respect.
3.3 Child-specific Forms of Persecution
According to the UNHCR 1997 Guidelines there are certain violations of human rights which children experience because they are children; they are child- specific. “It should be further borne in mind that, under the Convention on the Rights of the Child, children are recognized certain specific human rights, and that the manner in which those rights may be violated as well as the nature of such violations may be different from those that may occur in the case of adults.
Certain policies and practices constituting gross violations of specific rights of the child may, under certain circumstances, lead to situations that fall within the scope of the Refugee Convention. Examples of such policies and practices are the recruitment of children for regular or irregular armies, their subjection to forced labour, the trafficking of children for prostitution and sexual exploitation and the practice of female genital mutilation.”36 The following includes examples of child-specific forms of persecution found in the case-material, but it is not an exhaustive list.
Forced Marriage
There are not many cases of forced marriage in the material. However,
interestingly out of the 26 cases of refugee recognition in Norway 9 of them are cases of forced marriage, well-founded fear of being forcibly married upon return and/or being subjected to cruel, inhuman, degrading treatment upon return. The Norwegian cases include 3 from Ethiopia, 2 from Somalia, 2 from Afghanistan, 1 from Iran and 1 from Pakistan. Most of them involve young girls fleeing
arranged marriages with older men and being abused and threatened by the family and community as a result. One case is different as it involves a boy from
35 This change of policy referred to in a case from Norway.
36 UNHR Guidelines, paragraph 8.7 page 10
Afghanistan who fears being killed or severely abused by the family of his girl- friend, who had been forcibly married to an older man and ran away with the applicant. There are some similar cases from Germany who were granted either refugee status or humanitarian protection. One involves a girl from Afghanistan who fled because she did not want to marry a 65-year-old and she feared getting killed by local Taliban for refusing the marriage.
Worst Forms of Child Labor37
There are not many cases where information appears about worst forms of child labor, but some of the child soldier cases also involve forced or slave labor. There are a couple of cases from Norway in which girls who suffered from a worst form of child labor were recognized as refugees. In one case a Somalian girl was abducted by soldiers and kept for two years imprisoned in a military camp where she, together with other abducted girls, had to cook and work for the soldiers.
They cooked for them, cleaned for them, were sex slaves, were forced to donate blood, among other things. In the other case, a girl from Ethiopia was sent to Dubai as a domestic servant and was severely abused, exploited and denied freedom of movement. There are also examples of such information on forced or slave labor being ignored or not taken into consideration in the assessment, such as the case of a boy from Mauritania38 where he in the course of his testimony says: “xy (name) was the owner of the farm, I was his slave, I don’t know whether my family sold me”. However, there were no further questions, such as what kind of work he did, how he was treated, how many others were working there, whether he got a salary, whether he was free to come and go as he wanted, etc. When the boy again mentioned it a bit later in the interview, the interviewer asked: “What happened to you, does it happen to other compatriots, is keeping slaves common in Mauritania?” After an affirmative reply from the boy it was not mentioned again. This boy was not assumed to be in danger of persecution upon return.
Street Children
In the case of street children, there are very few cases and few containing any such information. There are no known cases of refugee recognition although some have been granted protection on humanitarian grounds. For example, there is a case from Germany of an Angolan street-child where the case-worker actually points out the child-specific circumstance and thus makes a difference between an adult and a child assessment. The following was argued: “In the present
circumstances an adult could actually succeed in reaching safe and NGO-assisted territory upon arrival in Angola. For minors without sufficient family resources it is realistic to assume that in cases of return to Angola they would be exposed to the most serious danger of life and limb, which would seem to make the return
37 Refer to the International Labor Organization (ILO) Convention No. 192 on the Worst Forms of Child Labour 1999
38 Case from Norway
